BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT DATED : 03/02/2006 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.513 of 2004 and W.P.M.P.No.483 Of 2004 Ms.Ruby Restaurant, Rep by its Proprietor, G.T.George Babu, 94,West Peruamal Maistry Street, Madurai 1. ... Petitioner Vs. 1.The TamilNadu Electricity Board, Rep by the Superintending Engineer, Maddurai Electricity Distribution System/Metro, K.Pudur, Madurai 1. 2.The Executive Engineer, South Distribution Division, Tamil Nadu Electricity Board, Madurai 1. ... Respondent PRAYER Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorarified Mandamus, to call for records of the first respondent in Letter No.MEPo/MAMIPAVA /PE.NA/MADURAI/Asst.Ex.Er/A.Er.(General)/Ko.Appeal No.776/04 dated 30.06.2004 confirming the assessment order made in Letter No.E/D/MEUAC/TA-II/D dated 30-6- 2004 and direct the respondents to refund the entire amount of Rs.1,58,937/- with interest to the petitioner. !For Petitioner ... Mr.S.N.Anatha Padmanabhan ^For Respondents ... Mr.A.Baskar :ORDER
Heard the learned counsel appearing for the petitioner and Mr.A.Baskar,
learned counsel appearing for the respondents.
2. This writ petition is preferred against the Appellate Authority/first
respondent dated 30.06.2004 and the assessment made by the Original
Authority/second respondent dated 08.10.2002, on the allegation of power theft
by the petitioner.
3. The case of the petitioner is that he is running a hotel by name Ruby
Restaurant at Madurai, having Electricity Connection in Sc.No.SDI.1123.
According to him, he is running the hotel for the past several years.
4. It was in the year 1995, the Madurai Corporation by order dated
24.04.1995, has directed the petitioner to purchase the ‘ohm metre’ by himself.
Since the metre is not available with the Corporation, according to the
petitioner, he has purchased the metre at his own cost and the same was
installed by the Corporation after receiving the installation charges. After the
installation of the metre, the Tamil Nadu Electricity Board has taken the charge
on 1995 onwards, inspected the same and never found any defect in the metre. The
Electricity charges have also been regularly paid by the petitioner.
5. However, when there was an inspection by the respondent on 03.09.2002,
it was found that the metre fixed by the department was not available and the
seal was found to be different and the word ‘PSR’ denoting the seal of the
department was not found. On that basis, it was suspected that there was a power
theft committed by the petitioner. On that basis, there was a complaint of power
theft by the department. The manager working in the petitioner’s hotel has paid
an amount of Rs.1,44,160/- to the respondent on 05.09.2002, stated to be
compounding fees. In addition to that, on the same day, an amount of Rs.14,777/-
was also paid by the petitioner towards another compounding fees. It is not in
dispute that it is the compounding fee imposed by way of penalty finding that
there is a power theft.
6. In the present case, the petitioner has chosen to pay the compounding
fees on 05.09.2002 on which date, admittedly, the assessment has not been
completed. Therefore, the said amount was paid contemplating the subsequent
assessment order.
7. It is the further case of the petitioner which is not denied by the
respondent that subsequently the assessment order was made by the second
respondent by his letter dated 08.10.2002 along with the working sheet stating
that by improper use of metre for the past one year, the petitioner has used
14,416 units for which he was suspected the compounding charges of Rs.1,44,160/-
along with 5% amounting of Rs.3,604/- and totalling an amount of Rs.1,47,764/-
was levied. After the said assessment was made, the petitioner has made an
appeal before the first respondent. This appeal was provided as per the terms
and conditions of Tamil Nadu Electricity Board Clause (37) Article (11) schedule
which relates to theft of energy of the previous Act. As per the said
requirement, the petitioner has filed an appeal before the first respondent. The
petitioner was directed to pay an amount of Rs.59,108/-. The petitioner also
paid the amount for the purpose of maintaining the appeal before the first
respondent.
8. The first respondent after enquiry, has passed the impugned order dated
30.06.2004, arriving at a conclusion that the description ‘PSQ’ is not available
in the metre and therefore there is a presumption of theft of energy and on that
basis, he has confirmed the order of the second respondent, as power theft. In
the impugned order of the Appellate Authority it is stated that in addition to
the amount of Rs.59,108/- admittedly paid by the petitioner at the time of
filing of the appeal, the petitioner was directed to pay the other amount of 10
instalments in the following manner.
“1.Rs.8,871/- on 15.07.2004
2.Rs.8,865/- on 15.08.2004
3.Rs.8,865/- on 15.09.2004
4.Rs.8,865/- on 15.10.2004
5.Rs.8,865/- on 15.11.2004
6.Rs.8,865/- on 15.12.2004
7.Rs.8,865/- on 15.01.2005
8.Rs.8,865/- on 15./02.2005
9.Rs.8,865/- on 15.03.2005
10.Rs.8,865/-on 15.04.2005″
9. According to the petitioner, he has paid four instalments due on
15.07.2004, 15.08.2004, 15.09.2004, 15.10.2004 amounting to Rs.35,466/- and
therefore the total amount of Rs.94,592/- was paid by the petitioner while
pending the appeal before the first respondent. It is relevant to point out that
this amount was paid by the petitioner, in addition to the compounding charges
collected from the petitioner, namely, an amount of Rs.1,47,764/- even on
05.09.2002. The said impugned order is assailed by the learned counsel for the
petitioner in the following manner:
The Original Authority as well as the Appellate Authority have not
considered the various points raised by the petitioner. According to the learned
counsel for the petitioner, as per the terms and conditions and schedule
existing at that time, the petitioner must have been given an opportunity to
prove his case. It is also stated that as per the said clause, the Original
Authority while making assessment, is expected to give a show cause notice and
if his explanation is not satisfactory, a detailed enquiry should be conducted
by giving sufficient opportunity to the petitioner to prove that the allegation
of the power theft, is not correct.
10. According to the learned counsel for the petitioner, the assessing
Authority has given a show cause notice and not considered the various averments
made by the petitioner including that of the original order of the corporation
which has permitted the petitioner to purchase the metre at his own cost.
Learned counsel for the petitioner would further submit that even the appellate
authority has not chosen to consider the same and, therefore, it is vitiated and
it is against the terms and conditions of the Electricity Board itself.
11. Per contra, Mr.A.Baskar, learned counsel for the Electricity Board
would state that even though, it is true that earlier when the Madurai
Corporation has permitted the petitioner to purchase the metre, since the metre
was not available, subsequent to the taking over of the control, the Electricity
Board has got right to insist its own regulation.
12. Nevertheless, it is not the case of the learned counsel for the
respondents that the respondent/Board has not found fault with the conduct of
the corporation. Mr.A.Baskar, learned counsel for the respondent would further
contend that the payment of compounding fees made by the petitioner on
05.09.2002 would not in any way exonerate the liability of the petitioner, if
the board comes to a conclusion that, in fact, the power theft has been
committed.
13. According to the learned counsel, a perusal of the order of the
Appellate Authority would show that there is a specific finding that the metre
is bogus. Therefore, this Court cannot go beyond that since it is a finding of
fact by an authority which contemplated under a specified terms and conditions
of enquiry.
14. As stated earlier, the fact remains that at the time when the metre
was installed, the same was not issued either by the corporation or by the Board
its own instruments. A specific permission was given to the petitioner to
purchase the metre at his own cost and after purchase of the metre, the then
municipality has infact installed the Electricity connection after collecting
necessary charges from the petitioner.
15. Therefore, in my considered view, the Board namely the first
respondent can not take a stand as if they are not bound by the decision taken
by the earlier corporation and the learned counsel for the respondents fairly
admitted that the board is bound by whatever the decision taken by the previous
authority namely the Corporation.
16. The fact remains to be considered is as to whether the first and
second respondents being authority and Appeallate Authority contemplated under
Act and the service connection have done their statutory duty in a proper
manner. A perusal of the impugned orders would show that nowhere in these two
orders the situations are found that there was a variation in the metre reading
which is a sine qua non for arriving at a conclusion for power theft. In
addition to that, I am to state that by going through the impugned order, the
basis of the order is that the seal with inscription PSQ is not available. That
too the original authority says that the inscription is PSR, while the appellate
authority uses the PSQ. Except that the said inscription is not available, there
is no other charge apparently on the face of it, against the petitioner.
17. A further reading of the impugned order would show that the metre was
intact and there was no breaking of seal. Whileso, it is not known as to how an
assessment has been made by the second respondent that a power theft has been
committed and the second respondent simply confirmed the same and on the face of
it, I see that the orders passed by the respondent without giving any
opportunity to the petitioner so as to establish his contention, as required
under the terms and conditions then in existence.
18. Therefore, I am of the considered view that the impugned order passed
by the respondents, must be set aside, and the second respondent must be
directed to conduct a fresh enquiry, giving adequate opportunity to the
petitioner which include the personal hearing as contemplated under the original
terms and conditions enumerated above.
19. As far as the amount of Rs.94,952/- received from the petitioner.
While the matter was pending before the appellate authority, there will be a
direction to the respondents to return the amount immediately to the petitioner.
This order is passed on the basis that on 05.09.2002, the assessing authority
has already recovered an amount of Rs.1,44,160/- and 14,770/- as compounding fee
which is actually a penalty amount payable in the event of the authority coming
to a conclusion that there is a power theft. It is not known as to how the
further amount of Rs.94,592/- was recovered from the petitioner, while the
matter was pending before the first respondent.
20. The first respondent being Appellate Authority fairly ought not have
directed the petitioner to pay any further amount of compound fees.
21. In this view of the matter, there will be a direction to the first
respondent to return the amount of Rs.94,592/- forthwith to the petitioner.
Since the matter is remitted back to the second respondent for proper
assessment, this Court directs that in respect of the amount of Rs.1,44,160, and
as compounding fee of Rs.14,770/- paid by the petitioner on 05.09.2002 the same
will be kept with the second respondent, till the completion of the enquiry in a
proper manner and a decision about the said amount will be taken in the order
passed by the second respondent.
22.The above said exercise shall be completed by the second respondent,
within a period of eight weeks from the date of receipt of a copy of this
order.
23. With the above observations, the writ petition stands allowed.
Consequently, the connected W.P.M.P is closed. There is no order as to costs.
nbk
To
1.The TamilNadu Electricity Board,
Rep by the Superintending Engineer,
Maddurai Electricity Distribution System/Metro,
K.Pudur, Madurai 1.
2.The Executive Engineer,
South Distribution Division,
Tamil Nadu Electricity Board,
Madurai 1.